HELPLINE - Example

Subscriber's Query .....

Please advise, we have an employee who has been away from work for the last two months due to being arrested for a serious offence. He was refused bail. The manager wants to hold a hearing to dismiss this employee for incapacity or operational requirements. Please advise on the correct process to follow.

Worklaw's Response ......

When an employee cannot work because s/he is imprisoned, this is a form of incapacity. Fair dismissal for this kind of incapacity will depend on the reasons for the incapacity, the extent of the incapacity, whether it is permanent or temporary, and whether any alternatives to dismissal do exist. Procedural fairness involves the employee being given a fair opportunity to put her/his case before any decision is taken to terminate the employment contract.

The leading case is Samancor Tubatse Ferrochrome v MEIBC & others (LAC JA 57/08, judgment 12 March 2010) where the imprisonment on the employee, causing him to be unable to work, was classified as incapacity. The court supported the view that incapacity may be permanent or temporary and may have either a partial or a complete impact on the employee's ability to perform the job. Having classified the matter as one of incapacity, the court went on to say that before dismissing an employee for incapacity caused through imprisonment, an employer needs to consider the reasons for the incapacity, the extent of the incapacity, whether it is permanent or temporary, and whether any alternatives to dismissal do exist. In this case the court held that merely providing the employee with a letter informing him in writing of the decision to dismiss him and the reasons for the dismissal while he was in prison, did not constitute a fair opportunity for him to present his case.

My view is that you need to make contact with the employee and ask him to make representations why he should not be dismissed. Once you have invited representations from the employee, hold an inquiry at which there should be a trade union representation. Evidence must be presented to the chairperson of the facts, efforts to get representations, and so on. Allow the trade union rep to ask questions and make sure this is recorded so there is evidence of procedural fairness. This should insulate you from later claims of unfair dismissal.